State v. Paule

2021 UT App 120
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
ELBERT JOHN PAULE,
Appellant.
Opinion
No. 20200555-CA
Filed November 12, 2021
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 191400658
Douglas J. Thompson and Margaret P. Lindsay,
Attorneys for Appellant
Sean D. Reyes and Nathan Jack,
Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and D AVID N. M ORTENSEN concurred.
HARRIS, Judge:
¶1 	Elbert John Paule shot and killed his friend (Friend), and
police later discovered the weapon used in the shooting—a
shotgun—lying 	in 	the 	grass 	below 	the 	balcony 	of 	Paule’s
apartment. Paule was charged with, among other things, murder
(for shooting Friend) and obstruction of justice (for allegedly
throwing the shotgun off the balcony). After a nine-day trial, a
jury credited Paule’s account that he shot Friend in self-defense
and acquitted him of murder, but nevertheless convicted him of
obstruction 	of 	justice. 	Paule 	now 	appeals 	that 	conviction,
asserting that the trial court erred by denying his motion to
arrest judgment and that his trial attorneys rendered ineffective
assistance. We affirm.

State v. Paule
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BACKGROUND1
¶2 	Paule and Friend became acquainted a month or two
prior to the shooting. While the depth of their friendship was not
entirely clear from trial testimony, witnesses testified that Paule
and Friend often spent time together hanging out, eating dinner,
and playing video games, and that Paule had stayed the night at
Friend’s residence several times. However, in the days leading
up to the shooting, their relationship began to deteriorate, and
the 	two 	of 	them 	exchanged 	heated 	words, 	largely 	through
digital messages. At one point, Paule suggested that the two of
them settle their dispute with a fight; Friend, for his part, told
Paule that he was going to come over to Paule’s apartment so the
two could “fight it out,” that it was not “going to end good for
[Paule],” and that he was going to “take [Paule] out.” Paule later
testified that he took these threats seriously and was concerned
for his safety.
¶3 	On the day of the shooting, Friend—with his fiancée
(Fiancée) 	and 	infant 	child 	in 	tow—went 	over 	to 	Paule’s
apartment, ostensibly to “squash the beef” between himself and
Paule. Accompanied by Fiancée and their infant, Friend climbed
the three flights of stairs to Paule’s apartment and knocked on
the door. Paule was home at the time and, fearing it was Friend
at the door, went into his bedroom to retrieve his shotgun.
Accounts differ as to whether Friend or Paule opened the door
first, and as to whether Friend had a knife in his hand, but one
thing is certain: as soon as Paule realized that Friend was
standing in his doorway, and before any meaningful dialogue
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (quotation simplified).

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occurred, Paule pulled the shotgun’s trigger and fatally shot
Friend.
¶4 	After 	the 	shooting, 	Paule 	fled 	the 	scene, 	allegedly
assaulting 	Fiancée 	in 	his 	attempt 	to 	escape 	the 	apartment.
Somehow, the shotgun made its way down onto the grass below
the balcony of Paule’s apartment, and Paule’s phone was lost—
and never found—during his departure from the apartment
complex. Paule then traveled to California, where he eventually
turned himself in to the local authorities and was extradited back
to Utah. The officer who booked Paule into jail in California
asked Paule if he knew why he was being taken into custody,
and Paule responded: “I’m here for murder” and “I used a
shotgun.”
¶5 	After investigation, the State charged Paule with four
crimes: 	(1) 	murder, 	a 	first-degree 	felony; (2) 	obstruction 	of
justice, a second-degree felony; (3) reckless endangerment, a
class A misdemeanor; and (4) assault, a class B misdemeanor.
The case eventually proceeded to a jury trial, which lasted nine
days. During his opening statement at trial, the prosecutor
explained to the jury that the murder charge was “for shooting
and killing” Friend; the obstruction of justice charge was for
throwing the shotgun “off the balcony in order to hinder, delay,
or prevent the investigation”; the reckless endangerment charge
was for endangering Fiancée and the infant by “just randomly
fir[ing]” a shotgun in their vicinity; and the assault charge was
for 	“punch[ing]” 	and 	“push[ing]” 	past 	Fiancée 	after 	the
shooting.
¶6 	At 	trial, 	the 	State 	presented 	testimony 	from 	many
witnesses, including Fiancée—who testified about what she saw
at 	the 	time 	of 	the 	shooting—and 	several 	law 	enforcement
officers. One of the officers testified that, while searching the
apartment’s balcony, he could see a “long rifle” or “shotgun” in
the grass “almost directly below the balcony.” Another officer

State v. Paule
20200555-CA 	4 	2021 UT App 120
testified that he retrieved that gun—which he determined to be a
shotgun—from the grass below the balcony, and he stated that
the position in which the gun was found was consistent with it
having been thrown 	to the ground. That same officer also
testified that a live round was found in the chamber of the
shotgun, and that the round inside the gun was “the same
brand” as the spent shell casing discovered inside the apartment.
And yet another officer testified that the only prints recovered
from the shotgun were Paule’s finger and palm prints.
¶7 	At the close of the State’s case, Paule moved for a directed
verdict as to the obstruction of justice count. In support of that
motion, Paule made one argument: that the State had presented
insufficient 	evidence 	indicating 	that 	it 	had 	been 	Paule—as
opposed to someone else—who had thrown the shotgun off the
balcony. During argument on the motion, which took place
outside the jury’s presence, all participants (including the court)
appeared 	to 	assume 	that 	the 	obstruction 	of 	justice 	count
concerned 	only 	the 	allegation 	that 	Paule 	had 	attempted 	to
dispose of the shotgun; indeed, inherent in Paule’s request—
which asked the court to order an acquittal on the obstruction
count—was the notion that the only thing Paule had been
accused of doing that could constitute obstruction of justice was
throwing the gun off the balcony. The State opposed the motion
on the sole ground that there existed “sufficient circumstantial
evidence” that Paule had been the person who threw the gun off
the balcony. That is, the State did not assert any other factual
bases on which the jury could convict Paule of obstruction of
justice. The court denied the motion, concluding that, based on
the 	circumstantial 	evidence, 	“the 	jury 	could 	make 	a
determination” that Paule had been the one who threw the gun
off the balcony.
¶8 	Paule testified in his own defense, and gave a much
different account of the shooting than Fiancée, claiming that he
shot Friend in self-defense. He also testified that he did not do

State v. Paule
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anything 	with 	the 	shotgun 	after 	the 	shooting, 	and 	instead
claimed that one of his roommates took the shotgun from his
hands and “ran out to the balcony.”
¶9 	After Paule rested his case, the trial court instructed the
jury. The instruction for the obstruction of justice charge stated
that the jury could not convict Paule unless it was able to find,
beyond a reasonable doubt, that Paule had “conceal[ed] or
remove[d] any item or other thing” with the “intent to hinder,
delay, or prevent the investigation . . . of any person regarding
conduct that constitutes a criminal offense.” The court also
instructed the jury that, “[i]n all criminal cases, including this
case, the unanimous agreement of all jurors is required before a
verdict can be reached.” No further instruction regarding jury
unanimity was given.
¶10 	During closing argument, the prosecutor discussed the
obstruction of justice charge and—as he had during his opening
statement—made clear to the jury that this charge was for “when
[Paule] threw the gun over the balcony.” He pointed out that
“only [Paule’s] prints [were] on that” gun, and urged the jury to
convict Paule on the obstruction charge because the evidence
indicated that Paule had been the one who threw the gun off the
balcony. At no point did the prosecutor identify any other act as
being the basis for the obstruction of justice charge, nor did he
ask the jury to convict Paule on that count for any other act.
¶11 	At certain points in his closing argument, the prosecutor
mentioned that Paule had “got rid of” his phone while fleeing
the scene and that Paule had traveled to California immediately
thereafter. But these comments were made much earlier in the
argument than the prosecutor’s discussion of the obstruction
charge, and were made in the context of discussing Paule’s guilt
on the murder charge. The prosecutor prefaced the discussion by
saying, “[n]ow, as to Paule’s guilt” on the murder charge, and
argued that a person who was truly scared of Friend and who

State v. Paule
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had acted in self-defense would not have “got rid of his phone”
and “fled to” California.
¶12 	The jury ultimately acquitted Paule of murder, reckless
endangerment, and assault, but convicted him of obstruction of
justice. Paule subsequently filed a motion to arrest judgment,
arguing that the jury’s verdict was legally inconsistent because
“the jury found [Paule] was legally justified” in shooting Friend
and that there had been “no crime for [Paule] to obstruct.” Paule
therefore asked the court to either enter an acquittal on the
obstruction of justice charge or, in the alternative, to reduce
Paule’s conviction from a second-degree felony to a class A
misdemeanor. In its written opposition to Paule’s motion, the
State continued to take the position that the obstruction of justice
count 	had 	been 	about 	Paule 	throwing 	the 	shotgun 	off 	the
balcony. But at oral argument on the motion, the State for the
first time asserted that there might have been other factual bases
upon which the jury might have convicted Paule of obstruction
of 	justice, 	including 	disposing 	of 	his phone 	and 	fleeing 	to
California. After argument, the trial court denied Paule’s motion.
¶13 	A few weeks later, at Paule’s sentencing hearing, the State
asked the court to deviate from the sentencing guidelines—
which 	indicated 	that 	probation 	would 	be 	appropriate—and
sentence Paule to prison. As part of its argument, the State
represented that it had spoken “with the jurors” and that they
had “mentioned” three things Paule did that they thought might
have constituted obstruction of justice: throwing the shotgun off
the balcony; disposing of the cell phone; and “absconding to
California.” The State discussed all three of those things in its
argument, and urged the court to deviate from the guidelines
because, among other reasons, Paule had taken “deliberate and
intentional steps to obstruct not only the investigation, but to
obstruct the entire prosecution.” Paule’s attorney objected to the
State’s discussion of anything that jurors might have told the
State after trial, and asked the court to strike those statements;

State v. Paule
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the court granted that request. Nevertheless, at the conclusion of
the sentencing hearing the court sentenced Paule to prison,
consistent with the State’s request.
ISSUES AND STANDARDS OF REVIEW
¶14 	Paule appeals his obstruction of justice conviction, and
asks us to consider two issues. First, he asserts that the trial court
erred when it denied his motion to arrest judgment; among other
things, he argues that his conviction for obstruction of justice is
legally inconsistent with his acquittal on the other charges. “We
review a trial court’s ruling on a motion to arrest judgment for
correctness.” State v. Hand, 2016 UT App 26, ¶ 10, 367 P.3d 1052;
see also Pleasant Grove City v. Terry, 2020 UT 69, ¶ 11, 478 P.3d
1026 (noting that “legally impossible verdicts involve a question
of law” and that such questions are reviewed “for correctness”).
¶15 	Second, Paule asserts that his trial attorneys rendered
ineffective assistance by failing to object to allegedly incomplete
jury instructions. “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court 	ruling 	to 	review 	and 	we 	must 	decide 	whether 	the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Beckering, 2015 UT App 53, ¶ 18, 346
P.3d 672 (quotation simplified).
ANALYSIS
I
¶16 	Paule challenges the trial court’s denial of his motion to
arrest judgment and, in support of that challenge, makes two
independent arguments. First, he takes issue with the conviction
as a whole, asserting that the guilty verdict on the obstruction of
justice charge is legally inconsistent with his acquittal on the

State v. Paule
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other charges and should therefore be vacated. Second, he takes
issue with the level of conviction, arguing in the alternative that
even if the verdict is not legally inconsistent, there is insufficient
evidence to support a felony conviction, and asks that the
conviction be instead entered as a misdemeanor. We address
each of Paule’s arguments, in turn, and reject them because they
are grounded in a misinterpretation of the obstruction of justice
statute.
A
¶17 	Paule’s 	first 	argument—for 	complete 	vacatur 	of 	his
conviction—is that the jury’s verdict was legally inconsistent. As
Paule 	sees 	it, 	his 	conviction 	for 	obstruction 	of 	justice 	is
inherently inconsistent with his acquittals on the remaining
counts, 	because 	the 	acquittals 	mean 	that 	there 	was 	no
underlying criminal conduct to obstruct. We first discuss the
obstruction of justice statute, including material amendments
made in 2001, and then address the merits of Paule’s argument.
1
¶18 	Prior 	to 	2001, 	a 	person 	could 	be 	found 	guilty 	of
obstruction of justice under Utah law if that person “conceal[ed],
destroy[ed], or alter[ed] any physical evidence that might aid in
the discovery, apprehension, or conviction of [an] offender,” and
did so “with intent to hinder, prevent, or delay the discovery,
apprehension, prosecution, conviction, or punishment of another
for the commission of a crime.” Utah Code Ann. § 76-8-306(1)(f)
(Lexis Supp. 2000) (emphasis added).
¶19 	In 	2001, 	our 	legislature 	materially 	amended 	the
obstruction 	of 	justice 	statute. 	Among 	other 	changes, 	the
legislature added “investigation” to the list of things that an
actor 	cannot 	hinder, 	delay, 	or 	prevent 	without 	potentially
committing obstruction of justice. See Act of Apr. 30, 2001, ch.
307, § 2, 2001 Utah Laws 1385, 1385. And, notably for present

State v. Paule
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purposes, the legislature deleted “for the commission of a crime”
and replaced that text with “regarding conduct that constitutes a
criminal offense,” and then included a statutory definition of the
phrase “conduct that constitutes a criminal offense.” Compare
Utah Code Ann. § 76-8-306(1), with Act of Apr. 30, 2001, at 1385–
86. According to that definition, “‘conduct that constitutes a
criminal offense’ means conduct that would be punishable as a
crime and is separate from a violation of this section, and
includes . . . any violation of a criminal statute or ordinance of
this state.” Act of Apr. 30, 2001, at 1386 (emphasis added).
¶20 	Thus, under current Utah law, as relevant here, “[a]n
actor commits obstruction of justice if the actor” does any one
of ten enumerated acts with the “intent to hinder, delay, or
prevent the investigation . . . of any person regarding . . . conduct
that would be punishable as a crime.” See Utah Code Ann. § 76-8-
306(1), (2)(a) (LexisNexis Supp. 2021) (emphasis added).2 In
our view, the 2001 amendments broadened the scope of the
statute. The inclusion of the word “investigation” bespeaks a
legislative 	intent 	to 	criminalize 	interference 	with 	law
enforcement 	criminal 	investigations, 	and 	not 	just 	the
apprehension, prosecution, conviction, or punishment of persons
who 	commit 	crimes. 	And 	the 	replacement 	of 	the 	phrase
“commission 	of 	a 	crime” 	with 	the 	phrase 	“conduct 	that
constitutes a criminal offense,” along with the inclusion of the
statutory definition of that phrase—especially that definition’s
use of the conditional verb construction “would be”—indicates
legislative intent that obstruction of justice can be present even if
the underlying conduct is never ultimately found to constitute a
crime. Indeed, we have previously so held. See State v. Hamilton,
2. Because the current iteration of the statute is not materially
different, for purposes of this case, from the version of the
statute in effect at the time of the shooting, we cite the current
statute for convenience.

State v. Paule
20200555-CA 	10 	2021 UT App 120
2020 UT App 11, ¶ 15, 457 P.3d 447 (stating that “the obstruction
of justice statute does not require a conviction of the underlying
crime”).
¶21 	In this case, the enumerated act Paule was accused of
committing 	was 	“alter[ing], 	destroy[ing], 	conceal[ing], 	or
remov[ing] any item or other thing.” See Utah Code Ann. § 76-8-
306(1)(c). Thus, to obtain a conviction, the State needed to prove,
beyond a reasonable doubt, that Paule (1) concealed or removed
the shotgun (2) with the intent to hinder, delay, or prevent an
investigation (3) into “conduct that would be punishable as a
crime.” See id. § 76-8-306(1)(c), (2)(a) (emphasis added).
2
¶22 	Citing Pleasant Grove City v. Terry, 2020 UT 69, 478 P.3d
1026, Paule 	asserts that the verdict 	in 	this case 	is “legally
impossible.” In Paule’s view, it is impossible to reconcile the
jury’s 	conviction 	for 	obstruction 	of 	justice 	with 	the 	jury’s
acquittal on all other counts. As Paule sees it, the jury’s verdict
means that no underlying crime was ever committed, and that
therefore no criminal conduct ever occurred whose investigation
he could have been guilty of obstructing. We reject Paule’s
argument because Terry does not apply here, and because Paule
misinterprets the obstruction of justice statute.
¶23 	In Terry, our supreme court determined that a defendant
who was “acquitted on [a] predicate offense but convicted on [a]
compound offense” was subject to a “legally impossible” verdict
and, 	in 	that 	situation, 	the 	defendant’s 	conviction 	on 	the
compound offense had to be vacated. Id. ¶¶ 54, 56. The court
distinguished 	between 	“legally 	impossible” 	verdicts 	and
“factually 	inconsistent” 	verdicts, 	and 	held 	that 	the 	former
“cannot stand” while the latter are sometimes permissible. Id.
¶¶ 38, 56. The court defined “legally impossible” verdicts as
those “that are inconsistent as a matter of law because it is
impossible to reconcile the different determinations that the jury

State v. Paule
20200555-CA 	11 	2021 UT App 120
would have had [to] make to render them.” Id. ¶ 13 (quotation
simplified). The court also noted that its decision was “narrow”
and “limited” to situations “in which a defendant is acquitted on
the predicate offense but convicted on the compound offense.”
Id. ¶ 54.
¶24 	Terry simply does not apply here. Neither murder nor
any of the other charges on which Paule was acquitted is a
predicate offense for an obstruction of justice conviction. See
Utah Code Ann. § 76-8-306(1). A person can legally be convicted
of 	obstruction 	of 	justice 	without 	also 	being 	convicted 	of
murder, reckless endangerment, or assault. Indeed, as noted, a
person can legally be convicted of obstruction of justice even in
the absence of any conviction on any underlying crime. See
Hamilton, 2020 UT App 11, ¶ 15. The verdict the jury rendered
here is simply not a “legally impossible” verdict as defined in
Terry.
¶25 	Moreover, Paule’s argument is founded on an incorrect
interpretation of the obstruction of justice statute. As Paule sees
it, the statute requires the presence of underlying “conduct that
constitutes a criminal offense,” see Utah Code Ann. § 76-8-306(1),
and he contends that there was no such conduct here because the
jury 	acquitted 	him 	of 	all 	underlying 	charges. 	But 	Paule
overlooks 	the 	included 	statutory 	definition 	of 	the 	phrase
“conduct that constitutes a criminal offense.” As noted, our
legislature 	defined 	that 	phrase 	as 	“conduct 	that 	would 	be
punishable as a crime.” See id. § 76-8-306(2)(a) (emphasis added).
In 	particular, 	Paule 	overlooks 	the 	legislature’s 	use 	of 	the
conditional verb form “would be” in the statutory definition.
“When 	we 	interpret 	statutes, 	our 	primary 	objective 	is 	to
ascertain 	the 	intent 	of 	the 	legislature,” 	and 	that 	intent 	is
sometimes expressed through verb tense or verb form. See Scott
v. Scott, 2017 UT 66, ¶ 22, 423 P.3d 1275 (quotation simplified);
see also id. ¶ 24 (“A statutory reading that credits a verb’s tense is
not uncommon.”). Because “the best evidence of the legislature’s

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20200555-CA 	12 	2021 UT App 120
intent is the plain language of the statute itself, we look first to
the plain language of the statute.” Id. ¶ 22 (quotation simplified).
“In so doing, we presume that the legislature used each word
advisedly,” including verb tense and verb form. Id. ¶¶ 22, 24
(quotation simplified). In our view, the legislature’s choice to use
a conditional verb form (“would be”) in the obstruction statute
indicates that the underlying conduct need not necessarily result
in a criminal conviction.
¶26 	Indeed, the legislature added the word “investigation” to
the statute in 2001, along with the amendment that defined
“conduct that constitutes a criminal offense.” See Act of Apr. 30,
2001, ch. 307, § 2, 2001 Utah Laws 1385, 1385–86. Since 2001, it
has been a crime to interfere with an “investigation” of any
person 	regarding 	“conduct 	that 	would 	be 	punishable 	as 	a
crime.” See Utah Code Ann. § 76-8-306(1), (2)(a). Thus, in cases
like this one where the allegation is that the actor hindered a law
enforcement investigation, the statutory focus is squarely placed
on the conduct being investigated at the time of the alleged
obstruction, and not necessarily on any conduct that a factfinder
ultimately finds, after trial, to have actually occurred. If the
conduct 	under 	investigation 	at 	the 	time 	of 	the 	alleged
obstruction “would be punishable as a crime,” then that conduct
qualifies as “conduct that constitutes a criminal offense,” as that
phrase is statutorily defined. See id.
¶27 	And all of this remains true, under the statutory language,
even if it is later determined—whether by law enforcement
officers or prosecutors who decide not to file charges, or by a
jury who acquits—that no underlying criminal activity occurred.
See Hamilton, 2020 UT App 11, ¶ 15 (stating that “the obstruction
of justice statute does not require a conviction of the underlying
crime—it simply requires a finding that the defendant took
certain actions with the intent to hinder, delay, or prevent the
investigation 	. 	. 	. 	of 	any 	person 	regarding 	conduct 	that
constitutes a criminal offense” (quotation simplified)). Paule’s

State v. Paule
20200555-CA 	13 	2021 UT App 120
argument—that the jury’s acquittal on the underlying counts is
inconsistent 	with 	his 	conviction 	for 	obstruction—founders
principally 	because 	the 	conduct 	ultimately 	found 	to 	have
occurred by the jury on the underlying charges is, in this case,
not particularly relevant to the obstruction count. Instead, the
conduct that matters for purposes of the obstruction count is
twofold: (a) the actions Paule took that allegedly constitute
obstruction, and (b) the underlying conduct being investigated
at the time of the alleged obstruction.
¶28 	Paule’s contrary interpretation of the statute is not only
incompatible with the statutory text, but could also lead to
seemingly absurd results and could incentivize individuals to
commit even more obstruction. Imagine a situation in which a
driver is involved in an auto-pedestrian accident with a fatality,
but the driver observed all traffic laws and did not act even
negligently, let alone intentionally. The driver panics, however,
upon seeing that the pedestrian died and—before police arrive,
and out of a concern that police might think a homicide was
committed—takes the body and hides it in a nearby ditch. Police
investigate the incident, based on the evidence found at the
crash site, as a potential homicide, and while conducting that
investigation they discover the body and learn that the driver
attempted to conceal it. Later, however, police conclude that the
crash was completely accidental and that no provable criminal
conduct occurred in connection with it, and no underlying
criminal charges are ever filed. Under Paule’s interpretation of
the statute, the driver could never be charged with obstruction of
justice for hiding the body, because there was no underlying
conduct 	that 	constituted 	a 	criminal 	offense. 	But 	Paule’s
interpretation is incorrect: in this situation, the driver can still be
charged with obstruction of justice, even though there is no
underlying 	criminal 	conduct, 	because 	at 	the 	time 	of 	the
obstruction the police were investigating a potential homicide,
and the driver hid the body with the intent to hinder or delay
that investigation. The possible homicide being investigated is

State v. Paule
20200555-CA 	14 	2021 UT App 120
“conduct that would be punishable as a crime” if the facts end
up 	turning 	out 	the 	way 	police 	investigators 	suspect, 	and
therefore that conduct, under the applicable statutory definition,
is “conduct that constitutes a criminal offense,” even though
such conduct may never actually be proved or even prosecuted.
See Utah Code Ann. § 76-8-306(1), (2)(a).
¶29 	In 	addition, 	Paule’s 	interpretation 	of 	the 	obstruction
statute would incentivize individuals interested in obstructing
justice to go all out in such efforts, because if they hinder the
investigation well enough to prevent any convictions on the
underlying charges, they will be immune from conviction for
obstruction 	of 	justice 	as 	well. 	Such 	a 	result 	is 	not 	only
incompatible with the text of the statute, but it is a result that is
unlikely to have been intended by legislative drafters.
¶30 	Thus, the jury’s ultimate conclusion that Paule acted in
self-defense in shooting Friend does not insulate him from
charges that he obstructed justice by impeding the investigation
into 	the 	underlying 	incident. 	At 	the 	time 	Paule 	threw 	the
shotgun off the balcony, police were investigating (or were about
to start investigating) potential criminal conduct associated with
the shooting death of Friend. Put in terms of the statutory text,
that investigation was “regarding conduct . . . that would be
punishable as a crime” if the facts had developed as suspected.
See id. The jury’s later acquittal of Paule on the underlying
charges does not mean that the State failed to prove any of the
elements of obstruction of justice. In appropriate cases, when
supported by the facts, a defendant who is acquitted on the
underlying charges may still—without any inconsistency in the
verdict—be convicted of obstruction of justice.
¶31 	Accordingly, we conclude that the jury’s verdict in this
case was not legally impossible, as that term is discussed in
Terry, and that the trial court correctly rejected Paule’s argument
to the contrary in denying his motion to arrest judgment.

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20200555-CA 	15 	2021 UT App 120
B
¶32 	Second, and in the alternative, Paule takes issue with the
level of his conviction, and asserts that the trial court erred when
it refused to reduce his obstruction of justice conviction from a
second-degree felony to a class A misdemeanor. At trial, during
proceedings in connection with the motion to arrest judgment, as
well as here on appeal, Paule couches these arguments in terms
of insufficiency of the evidence—that is, he asserts that the
evidence 	presented 	at 	trial 	was 	insufficient 	to 	support 	a
conviction 	as 	a 	second-degree 	felony, 	as 	opposed 	to 	a
misdemeanor. 	In 	assessing 	a 	sufficiency 	of 	the 	evidence
challenge, 	we 	will 	reverse 	only 	where 	“the 	evidence 	is
sufficiently 	inconclusive 	or 	inherently 	improbable 	such 	that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime for which he or she was
convicted.” State v. Jok, 2021 UT 35, ¶ 17, 493 P.3d 665 (quotation
simplified). That standard is not met here, and on that basis we
reject Paule’s argument.
¶33 	Under Utah law, obstruction of justice can constitute
either a second-degree felony, a third-degree felony, or a class A
misdemeanor, depending on the severity of the “conduct that
constitutes 	an 	offense.” 	See 	Utah 	Code 	Ann. 	§ 	76-8-306(3).
Obstruction of justice is a second-degree felony “if the conduct
which constitutes an offense would be a . . . first degree felony,”
but it is a class A misdemeanor if, among other reasons, the
underlying offense is a misdemeanor. See id. The State charged
Paule with second-degree-felony obstruction of justice, asserting
that the investigation he obstructed was about whether Paule (or
someone else) had committed first-degree murder.
¶34 	Paule contends that, because he was ultimately charged
with three different underlying counts—one first-degree murder
charge 	and 	two 	misdemeanor 	charges—“it 	is 	impossible 	to
know whether the underlying offense” found by the jury “was

State v. Paule
20200555-CA 	16 	2021 UT App 120
murder, endangerment, assault, or some other offense.” Paule
thus asserts that the evidence is insufficient to support a second-
degree-felony conviction in this case.
¶35 	But there was copious evidence in the record to support a
determination that the investigation at issue here was principally
an investigation of a potential first-degree felony. In this case,
police were clearly investigating Friend’s death as a possible
murder. Just two days after the shooting, police charged Paule
with first-degree murder; indeed, in the initial information filed
in this case, that was the only charge the State brought against
him. And on that very same day, when Paule turned himself in
to officers in California, he told them—in response to their query
as to what he 	was being held 	for—that he was “here for
murder.”
¶36 	We therefore have no trouble concluding that sufficient
evidence existed to support a determination that the underlying
investigation concerned conduct that would be punishable as a
first-degree felony. Accordingly, the trial court did not err in
denying Paule’s motion to arrest judgment.3
3. In a related argument, Paule asserts that his trial attorneys
rendered ineffective assistance by failing to request an additional
instruction that might have further defined the phrase “conduct
that constitutes a criminal offense,” and for failing to request
some unspecified mechanism—perhaps a special verdict form—
that would have allowed the jurors to “inform the court which
conduct that constitutes a criminal offense they determined beyond
a reasonable doubt Paule acted to obstruct.” Paule devotes less
than one page to this argument; to the extent Paule’s argument
here intends to incorporate by reference his earlier contentions
regarding his interpretation of the obstruction of justice statute,
we reject that argument for the same reasons already articulated.
(continued…)

State v. Paule
20200555-CA 	17 	2021 UT App 120
II
¶37 	Next, 	Paule 	asserts 	that 	his 	trial 	attorneys 	rendered
constitutionally ineffective assistance by failing to object to the
absence of a specific instruction regarding jury unanimity. In
particular, Paule asserts that certain evidence at trial supported
three different factual bases on which the jury might have found
that 	he 	had 	obstructed 	justice—throwing 	the 	gun 	off 	the
balcony, disposing of his phone, and fleeing to California—but
notes that he was charged with only one count of obstruction,
and he correctly observes that the jury was not instructed that
any guilty verdict needed to be unanimous with regard to which
factual episode formed the basis for the conviction. Paule faults
his attorneys for not asking for a specific instruction in this
regard, and asserts that the outcome of the case would have been
different if they had. We find Paule’s argument unpersuasive
because the State offered the jury only one potential basis upon
which to ground a conviction for obstruction of justice.
¶38 	To establish that his attorneys rendered constitutionally
ineffective 	assistance, 	Paule 	must 	show 	both 	(1) 	that 	his
attorneys’ performance was deficient, in that it “fell below an
objective standard of reasonableness,” and (2) that this deficient
(…continued)
But even assuming, without deciding, that Paule’s trial attorneys
performed deficiently in failing to request these items, Paule
does not carry his burden of persuading us that there exists a
reasonable likelihood of a different result if they had, especially
in light of other evidence in the record, including Paule’s own
admission (to the California officer) that he knew he was “here
for murder.” See State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350
(“The burden is on the defendant to demonstrate a reasonable
probability that the outcome of his or her case would have been
different absent counsel’s error.”).

State v. Paule
20200555-CA 	18 	2021 UT App 120
performance “prejudiced the defense” such that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord
State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24, 469 P.3d 871. “A defendant must satisfy both parts of
this test in order to successfully establish ineffective assistance.”
State v. Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150. Thus, “it
is unnecessary for a court to address both components of the
inquiry 	if 	we 	determine 	that 	a 	defendant 	has 	made 	an
insufficient showing on one.” Id. (quotation simplified).
¶39 	The first part of the test requires Paule to show that his
attorneys’ performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified).
In evaluating the reasonableness of trial counsel, courts will
often look to whether counsel acted strategically by taking the
disputed action. See id. ¶ 35 (“[T]he performance inquiry will
often include an analysis of whether there could have been a
sound strategic reason for counsel’s actions.”). “If it appears
counsel’s 	actions 	could 	have 	been 	intended 	to 	further 	a
reasonable strategy, a defendant has necessarily failed to show
unreasonable performance.” Ray, 2020 UT 12, ¶ 34.
¶40 	Paule’s claim of ineffective assistance raises the issue of a
non-unanimous jury verdict on the obstruction of justice charge.
Specifically, Paule asserts that some (but not all) members of the
jury could have believed that he obstructed justice by throwing
the shotgun off the balcony, some (but not all) members of the
jury could have believed that he obstructed justice by disposing
of his phone, and still other (but not all) members of the jury
could have believed that he obstructed justice by fleeing to
California; in that event, Paule could have been convicted of
obstruction of justice even though not all jurors would have
agreed that he committed any particular act of obstruction.
Because the jurors were not instructed that they had to agree on

State v. Paule
20200555-CA 	19 	2021 UT App 120
the act underlying the obstruction charge, Paule contends that
the 	instructions 	were 	not 	legally 	correct 	and 	that 	his 	trial
attorneys were ineffective for not objecting to them.
¶41 	Paule 	correctly 	understands 	Utah’s 	jury 	unanimity
jurisprudence. Our state constitution provides that “[i]n criminal
cases the verdict shall be unanimous.” Utah Const. art. I, § 10.
“At 	its 	most 	basic 	level, 	this 	provision 	requires 	the 	full
concurrence of all empaneled jurors on their judgment as to the
criminal charges submitted for their consideration.” State v.
Hummel, 2017 UT 19, ¶ 25, 393 P.3d 314. Additionally, it is “well-
established” that our constitutional unanimity requirement “‘is
not met if a jury unanimously finds only that a defendant is
guilty of a crime.’” See id. ¶¶ 26, 30 (emphasis omitted) (quoting
State 	v. 	Saunders, 	1999 	UT 	59, 	¶ 	60, 	992 	P.2d 	951). 	Our
constitution “requires unanimity as to each count of each distinct
crime charged by the prosecution and submitted to the jury for
decision.” Id. ¶ 26 (emphasis omitted). Indeed, “a generic ‘guilty’
verdict that does not differentiate among various charges would
fall short,” as would “a verdict of ‘guilty of some crime.’” Id.
¶¶ 26–27. For example,
a verdict would not “be valid if some jurors found
a 	defendant 	guilty 	of 	robbery 	committed 	on
December 25, 1990, in Salt Lake City, but other
jurors found him guilty of a robbery committed
January 	15, 	1991, 	in 	Denver, 	Colorado, 	even
though all jurors found him guilty of the elements
of the crime of robbery.”
Id. ¶ 28 (quoting Saunders, 1999 UT 59, ¶ 60). “These are distinct
counts or separate instances of the crime of robbery, which
would have to be charged as such.” Id.
¶42 	In State v. Alires, 2019 UT App 206, 455 P.3d 636, we held
that a jury verdict violated constitutional unanimity principles
where a defendant was charged with “six identically-worded

State v. Paule
20200555-CA 	20 	2021 UT App 120
counts” of sexual abuse, the counts were not distinguished by
act or alleged victim, the victims described more than six acts
that could have qualified as abuse, and the jury convicted the
defendant on only two counts. See id. ¶¶ 22–23. This situation
was problematic because “the jurors could have completely
disagreed on which acts occurred or which acts were illegal.” Id.
¶ 23. And even more recently, in State v. Mendoza, 2021 UT App
79, we applied these principles to the obstruction of justice
statute, and concluded that “the obstruction of justice statute’s
various ways to perform the actus reus of the crime constitute
alternative elements, the commission of any one of which could
satisfy that statutory element, but which also require the jury to
agree that the same underlying criminal act has been proved
beyond a reasonable doubt.” See id. ¶ 13 (quotation simplified).
In Mendoza, we held that a trial attorney performed deficiently in
an obstruction of justice case by failing to request a specific jury
unanimity instruction or a special verdict form that would have
required the jury “to specify which statutorily prohibited act [the
defendant] engaged in.” Id. ¶ 16.
¶43 	In 	cases 	like 	these, 	jury 	unanimity 	problems 	can 	be
mitigated in one of two ways. First, a trial court can give a
specific jury unanimity instruction—over and above the general
unanimity 	instruction, 	see 	Model 	Utah 	Jury 	Instructions 	2d
CR216 (2018), https://www.utcourts.gov/resources/muji/inc_list.
asp?action=showRule&id=30#216 [https://perma.cc/TY2Y-DCEA]
—informing the jurors that “all of them must agree that the same
underlying criminal act has been proved beyond a reasonable
doubt.”4 See State v. Vander Houwen, 177 P.3d 93, 99 (Wash. 2008)
4. While there exists a model Utah jury instruction discussing the
general unanimity requirement, there does not exist a model
instruction regarding specific unanimity as to the underlying
factual 	circumstance. 	We 	urge 	the 	Advisory 	Committee 	on
(continued…)

State v. Paule
20200555-CA 	21 	2021 UT App 120
(en banc) (quotation simplified), quoted with approval in Alires,
2019 	UT 	App 	206, 	¶ 	22. 	Alternatively, 	the 	prosecutor 	can
specifically identify for the jury—usually in opening statement
or in closing argument—“which act supported each charge.” See
Alires, 2019 UT App 206, ¶ 22; see also State v. Santos-Vega, 321
P.3d 1, 18 (Kan. 2014) (stating that, in order to remedy a jury
unanimity problem, “either the State must have informed the
jury which act to rely upon for each charge . . . or the [trial] court
must have instructed the jury to agree on the specific criminal
act for each charge”), quoted with approval in Alires, 2019 UT App
206, ¶ 22; Mendoza, 2021 UT App 79, ¶¶ 19–20 (noting that, if the
prosecutor had “put[] all his eggs in one basket” and identified
“one particular action” that formed the basis for the obstruction
charge, the court “might be inclined to” reject the defendant’s
ineffective assistance of counsel claim “for lack of prejudice”);
Whytock, 2020 UT App 107, ¶ 31 (observing that the State could
have used the jury instructions or closing arguments to “indicate
to the jury which factual occasion was the one being charged”).
¶44 	In this case, Paule correctly notes that he was charged
with 	only 	one 	count 	of 	obstruction 	of 	justice. 	He 	alleges,
however, 	that 	the 	State 	put 	on 	evidence 	of 	three 	distinct
underlying acts that each could have independently formed the
basis for a conviction on that count. Paule therefore contends
that, as in Alires, “the jurors could have completely disagreed on
which acts occurred or which acts were illegal,” and yet could
have nonetheless convicted him of obstruction of justice. See 2019
UT App 206, ¶ 23.
¶45 	We disagree with Paule’s characterization of the evidence
and arguments presented at trial. At no point during trial did the
(…continued)
Model Utah Criminal Jury Instructions to consider including
such an instruction in its set of model instructions.

State v. Paule
20200555-CA 	22 	2021 UT App 120
prosecutor ever argue that the obstruction count was for any act
other than throwing the shotgun off the balcony. To the contrary,
the State consistently maintained during trial, in representations
made 	both 	to 	the 	jury 	and 	outside 	its 	presence, 	that 	the
underlying act for which it sought conviction for obstruction
was the act of throwing the shotgun off the balcony. During his
opening statement, the prosecutor informed the jury that the
obstruction count was for “when, after he shot [Friend], [Paule]
took that shotgun, [and] threw it off the balcony in order to
hinder, delay, or prevent the investigation.” During the mid-trial
argument regarding the directed verdict motion, the State again
made clear its view that the act underlying the obstruction count
was only the act of throwing the shotgun off the balcony. And in
his closing argument, the prosecutor reemphasized that the
obstruction charge was for “when [Paule] threw the gun over the
balcony,” and asked for a conviction on that count because “only
[Paule’s] prints are on that” gun and that fact, combined with
other evidence, indicated that Paule had been the one who threw
the gun off the balcony.
¶46 	Paule resists this conclusion by directing our attention to
the fact that the jury heard evidence that Paule lost his phone
while 	leaving 	the 	apartment 	complex 	and 	that 	he 	fled 	to
California immediately thereafter, and to comments made by the
prosecutor during closing argument discussing that evidence.
But in our view, Paule misperceives the context in which this
evidence 	was 	introduced 	and 	discussed. 	The 	prosecutor
discussed that evidence during closing only in connection with
his argument on the murder charge, not on the obstruction
charge, 	and 	only 	as 	a 	way 	to 	discuss 	Paule’s 	potential
consciousness of guilt and to argue that Paule did not shoot
Friend out of self-defense; specifically, the prosecutor argued
that a person who was truly scared of Friend and who had acted
in self-defense would not have “got rid of his phone” and “fled
to” California. These comments were not reasonably likely to
have diluted the State’s otherwise-clear position: that it was

State v. Paule
20200555-CA 	23 	2021 UT App 120
asking for an obstruction of justice conviction only for the act
related to the shotgun, and not for any acts related to the cell
phone or flight to California.5
¶47 	And any comments the State made after the jury had been
discharged—for instance, at sentencing, or in defending against
Paule’s motion to arrest judgment—cannot have had any effect
on the jury’s perception of the factual basis for the obstruction
charge. Without commenting on whether those comments were
well-advised, we can readily conclude that any comment made
days or weeks after the jury’s discharge cannot possibly have
countermanded or diluted, in the jury’s mind, the reach of the
State’s otherwise-clear guidance to the jury regarding the scope
of the obstruction charge.
5. The trial court struck from the record any statements proffered
by the State that jurors had told prosecutors that they considered
the other acts—related to the phone and flight to California—to
be in play related to the obstruction of justice charge. Not only
have those comments been stricken from the record, and on that
basis alone are not to be considered on appeal, our consideration
of those comments would appear to violate at least two rules of
evidence. See Utah R. Evid. 606(b)(1) (stating that “a juror may
not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental processes
concerning the verdict or indictment”); id. R. 802 (“Hearsay is
not admissible except as provided by law or by these rules.”).
Paule mentions these statements in his reply brief, even though
he acknowledges that they are “inadmissible hearsay” and were
stricken from the record. Those statements should not have been
included in the reply brief, and we therefore grant the State’s
motion to strike all references to those statements; we do not
consider them for any purpose in this opinion.

State v. Paule
20200555-CA 	24 	2021 UT App 120
¶48 	Therefore, in this case the State properly took advantage
of one of the pathways identified in our case law to obviate any
jury unanimity problem: it clearly identified for the jury which
factual circumstance formed the basis for its obstruction of
justice charge. See Alires, 2019 UT App 206, ¶ 22. And because
the State made this clear to the jury, Paule’s attorneys did not act
unreasonably by electing not to seek further relief at trial. Thus,
Paule 	cannot 	demonstrate 	that 	his 	attorneys 	performed
deficiently, 	and 	on 	this 	basis 	we 	reject 	Paule’s 	ineffective
assistance of counsel claim.
CONCLUSION
¶49 	The trial court did not err when it denied Paule’s motion
to arrest judgment because the jury verdict was not legally
inconsistent. And Paule has failed to demonstrate that his trial
attorneys 	rendered 	constitutionally 	ineffective 	assistance.
Accordingly, we affirm Paule’s conviction.